Capital Punishment and the Constancy of Catholic Social Teaching
The experience of individuals in the world shares certain consistent realities, and among those shared realities is response to institutional constancy. We all share the experience of receiving promises that are not kept, from individuals representing institutions. When this becomes a continual experience, then our response to those promises will often be different than it otherwise would have been. And while we may still embrace the institution, we will become more deeply exasperated by its lack of constancy. While an institution’s failure to deliver on promises may merely make some people cynical, it can have disastrous results upon individuals seeking the truth if the institution in question is the Church herself, the custodian of Truth.
When promises are kept and faith is congruent with practice, particularly over a long period of time, constancy is maintained and the level of trust and respect engendered rises proportionately. We have this wonderful gift in our well-informed knowledge of the history of the Church, her great constancy to the ancient truths that are congruent with what she still teaches. Many of these are embodied in the simple, visible movement of the priests and the faithful through the sacraments, but it is in the teaching—built on the stones of Sinai, the ministry, death and resurrection of Christ, and the rock of Peter—that there shines a light in the eternal cathedral of time and memory, embracing us all in the immortal truths.
This constancy is sometimes not easily perceived. The world has attempted to destroy the Church from her very beginning, often with the conscious or unconscious help of her members, and the smoke of Satan’s war against the Church has always swirled about the corners of the sanctuary, often as close to us as Cain was to Abel. But the record of the thousand battles of this war during the thousands of years it has been waged, and the great triumphs of Holy Mother Church, are resounding still; even within the darkest heart of a sinner they may resound—and when a penitent soul discovers the mark of this triumph written across the heavens and through the centuries, it can be efficacious in bringing that soul to redemption.
The mandate for the constancy of the Church comes from the truth that there will be no further revelation, as the Catechism teaches us:
In many and various ways God spoke of old to our fathers by the prophets, but in these last days he has spoken to us by a Son. Christ, the Son of God made man, is the Father’s one, perfect and unsurpassable Word. In him he has said everything; there will be no other word than this one . . . 1
The deposit of faith is sacred, interpreted by the Church:
The apostles entrusted the ‘Sacred deposit’ of the faith (the depositum fidei), contained in Sacred Scripture and Tradition, to the whole of the Church. ‘By adhering to [this heritage] the entire holy people, united to its pastors, remains always faithful to the teaching of the apostles, to the brotherhood, to the breaking of bread and the prayers. So, in maintaining, practising and professing the faith that has been handed on, there should be a remarkable harmony between the bishops and the faithful.’2
Working from this divine foundation, the conversion of sinners through the transcendence of the truth of the world by the truth of God is a process involving time, prayer, and grace; and in many cases today, the rôle of the social teaching of the Church is substantial.
While Catholic social teaching has always supported capital punishment, based on scripture, tradition, and teaching as expressed in the two universal catechisms (that of the Council of Trent and that post-Vatican II), the death penalty has been opposed by some in the Catholic hierarchy as unnecessary, with current criminal justice technology being judged adequate to the protection of the innocent against the aggressor, meeting the criteria established by the Holy See in 1997:
If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means. . . 3
Capital punishment as a way of protecting the innocent from the aggressor has become one of the central issues in the social teaching of the Church, and the ambiguity about it during the past several decades, after two millennia of seeming certainty, places the credibility of the Church’s teaching itself in doubt. This impairs the Church’s social teaching as an effective tool for conversion, and causes further risk to the immortal souls of those who are lost and whose being found largely depends on the constancy of that social teaching.
My personal thinking on capital punishment has gone through three phases. A former professional criminal, I served twelve years in maximum security federal and state prisons, where I gained an intimate knowledge of unrepentant evil. At that time I supported capital punishment, especially for those crimes against innocent women and children that professional criminals associate with its just use. When I became a Catholic, I moved in opposition to it, because I was taught during the Rite of Christian Initiation for Adults that the Church opposed it, and it was very important to me to think with the Church in all things. Later, continuing my studies on Church teaching, I returned to a position of support when I discovered that the Church’s teaching opposed only the improper use of capital punishment. My position has become more certain with my growing realization of how deeply support for capital punishment is woven into Church doctrine as an important aspect of the protection of the innocent against the murderer, “for all time” as the Catechism notes:
The covenant between God and mankind is interwoven with reminders of God’s gift of human life and man’s murderous violence: ‘For your lifeblood I will surely require a reckoning. . . Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image’ (Genesis 9:5-6). The Old Testament always considered blood a sacred sign of life (Leviticus 17:14). This teaching remains necessary for all time.4
One of the most important reasons for ensuring that capital punishment remains an option for protecting the innocent is that it is a clear response to evil, and it is important that our Church remain committed to confronting and fighting evil directly. In fact, ultimately, the Church’s constancy in fighting evil is informed and animated by the constancy of the social teaching of the Church, and is an eloquent indicator of the truth of that social teaching.
Part of the constancy of the social teaching on the efficacy of capital punishment as a function of the ancient and transcendent sword of justice, rests on its retributive purpose, as noted by J. Budziszewski:
The question to ask about the retributive purpose of capital punishment is this: is it possible for punishment to signify the gravity of crimes which deserve death if their perpetuators are never visited with execution? This seems unlikely. Consider the deviant who tortures small children to death for his pleasure, or the ideologue who meditates the demise of innocent thousands for the sake of greater terror. Genesis says murderers deserve death because life is precious; man is made in the image of God. How convincing is our reverence for life if its mockers are suffered to live? 5
It is this reverence for life, especially innocent life, which underlies the traditional support of the Catholic Church for the juridical use of capital punishment. The protection of innocent life is of central importance to the Church, and while support for capital punishment as part of that protection exists among the faithful of the Church (Gallup Poll data indicate that 61% of Catholics find capital punishment morally acceptable6), we still encounter damage done to the responsibility to protect the innocent, in the general confusion about the life issues that the abolition movement abets.
While the Catholic Church does not base its traditional support for capital punishment on the quality of the administration of justice in one nation or another, one of the arguments used by proponents of abolition in the United States is the possibility of an innocent person’s being executed, and while some researchers conclude that this has occurred, others deny it, and the debate continues, even within the U.S. Supreme Court:
Justice Scalia vigorously criticized Justice Souter’s dissent and the ‘growing literature’ he cited. First, he noted, there was no showing that an ‘actually innocent’ person had been executed under contemporary capital punishment laws. Second, he challenged the methodology of the studies cited by Justice Souter. Third, he agreed with Justice Thomas that the reasoning of Justice Souter’s dissent amounted to a quest for ‘100% perfection’ in capital proceedings that would lead to additional unjustified judicially-created encumbrances on the imposition of the death penalty.7
The United States Conference of Catholic Bishops (USCCB) has long called for the abolition of capital punishment in the United States. Its statement of 2005, The Culture of Life and the Penalty of Death, is based primarily on the belief that current criminal justice technology provides protection to the innocent from the criminal aggressor without resorting to capital punishment.
However, our legal system guarantees rights of visitation and communication in even the most secure confinement, and the aggressor still has the capacity to reach out and harm the innocent, whether through the possession of contraband cell phones, or the transmission of information through corrupted attorneys, guards and visitors, and it is in this context that criminal justice professionals require the continued option of capital punishment. And it is also from this perspective that the magisterium of the Catholic Church, expressed through the centuries, continues to allow for capital punishment:
The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor . . . 8
An important point was made by Avery Cardinal Dulles, in 2004, regarding the argument reversing the traditional support of the Church for capital punishment:
The reversal of a doctrine as well established as the legitimacy of capital punishment would raise serious problems regarding the credibility of the magisterium. Consistency with scripture and long-standing Catholic tradition is important for the grounding of many current teachings of the Catholic Church; for example, those regarding abortion, contraception, the permanence of marriage, and the ineligibility of women for priestly ordination. If the tradition on capital punishment had been reversed, serious questions would be raised regarding other doctrines. . . 9
Crime is a theological problem; it is only within theology that evil—the deepest dimension of crime—can be addressed. It is evil which must concern us in addressing crime and we must recognize that though evil rarely reforms, most criminals can and will do so, given a reason and shown the way. And the way is often the threat of imminent death, imposed judicially, for crimes committed, as St Thomas Aquinas taught:
When, however, they fall into very great wickedness, and become incurable, we ought no longer to show them friendliness. It is for this reason that both Divine and human laws command such like sinners to be put to death, because there is greater likelihood of their harming others than of their mending their ways. Nevertheless the judge puts this into effect, not out of hatred for the sinners, but out of the love of charity, by reason of which he prefers the public good to the life of the individual. Moreover the death inflicted by the judge profits the sinner, if he be converted, unto the expiation of his crime; and, if he be not converted, it profits so as to put an end to the sin, because the sinner is thus deprived of the power to sin any more.10
The most powerful example of this reflection on capital punishment by St. Thomas that “the death inflicted by the judge profits the sinner” is that of Dismas, the good thief crucified with Christ, who established the eternal model of the efficacy of capital punishment in calling forth deep and true penance, which Christ, in the open confessional of Golgotha, received, forgiving Dismas and elevating him to sainthood. Total abolition of capital punishment appears deeply incongruent with centuries of ecclesiastical support, and unduly dismissive of the possibility of the spur of temporal death leading to redemptive liberation from eternal torment. We cannot forget that we have eternal life, and it is the spur of eternity that often brings redemption to a sinful soul facing the certainty of temporal death. That is the good, the charity, that the magisterium of the Church speaks of in relation to its strong and ancient support of capital punishment.
The recent change, regarding capital punishment, from support to opposition by some of the leadership within the Catholic Church is examined by Romano Amerio:
An important change has occurred in the Church regarding the theology of punishment. We could cite the French bishops’ document that asserted in 1979 that the death penalty ought to be abolished in France as it was incompatible with the Gospel, the Canadian and American bishops’ statements on the matter, and the articles in the Osservatore Romano calling for the abolition of the death penalty, as injurious to human dignity and contrary to the Gospel.
. . . [O]ne cannot cancel out the Old Testament’s decrees regarding the death penalty, by a mere stroke of the pen. Nor can canon law, still less the teaching of the New Testament, be cancelled out at a stroke. I am well aware that the famous passage in Romans (Rm 13:4) giving princes the ius gladii (the right use of the sword), and calling them the ministers of God to punish the wicked, has been emptied of meaning by the canons of the new hermeneutic, on the grounds that it is the product of a past set of historical circumstances. Pius XII however explicitly rejected that view, in a speech to Catholic jurists on 5 February 1955, and said that the passage of St. Paul was of permanent and universal value, because it refers to the essential foundation of penal authority and to its inherent purpose.11
The change in the wording on capital punishment in sections 2266-2267 of the Catechism of the Catholic Church, from the first edition (1992) to the second edition (1997), moved from clear support by affirmation to muddy support by deprecation. What happened? We know that the new language concerning capital punishment in the second edition of the Catechism originated from the encyclical of John Paul II, Evangelium vitae (25 March, 1995), and as to the explanation of that language, we have the words of Joseph Cardinal Ratzinger (Pope Benedict XVI) who presided over the Interdicasterial Commission for the Catechism of the Catholic Church, responsible for overseeing the publication of the second edition, as reported in First Things:
Clearly, the Holy Father [John Paul II] has not altered the doctrinal principles which pertain to this issue as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances. Thus, where other means for the self-defence of society are possible and adequate, the death penalty may be permitted to disappear.12
S. A. Long, in The Thomist, commented on the change in the legitimacy of capital punishment after Evangelium vitae:
The Magisterial judgement of Evangelium vitae concerning the legitimacy of capital punishment constitutes—as emphasized anew by its insertion within The Catechism of the Catholic Church—the most important modern locus for understanding the Church’s teaching on this topic. The position presented in this encyclical has figured prominently in more recent papal and episcopal statements dealing with the death penalty. The question that has created some confusion is what kind of teaching is being presented. A common interpretation is that Evangelium vitae marks a doctrinal development: the encyclical is said to restrict use of the death penalty to cases where it is absolutely necessary for the physical protection of society in a sense comparable to the use of lethal force in self-defence. Yet such a reading neglects numerous and substantial contributions from the tradition that argue for a different understanding of the penalty’s legitimacy. It is the nearly unanimous opinion of the Fathers and Doctors of the Church that the death penalty is morally licit, and the teaching of past popes (and numerous catechisms) that this penalty is essentially just (and even that its validity is not subject to cultural variation).13
After an extensive refutation of the reductionist argument, he concludes:
From a Thomistic vantage point, the reductionist interpretation of Evangelium vitae is difficult to reconcile with Catholic tradition, because this tradition must consider the political state as providentially bound to acknowledge and implement a morally transcendent order of justice. So long as Catholics do not become contract theorists or Hobbesians, they must conceive the state as executing an order of justice that transcends it in origin, majesty, and truth. Only on such a ground does punishment as a righting of moral imbalance make sense.14
What was changed was perhaps a more sensitive appreciation of the seriousness of capital punishment, and the expression of a sincere hope that someday, in some way, and under some conditions, it may not be necessary to resort to it. But that time is not here yet.
The calls by the USCCB for an end to the use of capital punishment when other means can be used to protect the innocent from the aggressor, have been issued without much exploration of the Catholic historic record regarding capital punishment, and without reference to the current consensus among criminal justice professionals that even within the confines of a maximum security prison, criminals are still able to carry out aggression against innocent persons, even outside the prison.15 The incompleteness of the bishops’ analysis was noted by Andrew Skotnicki, O. Carm., in 2002, referring to the statement on crime and criminal justice by the Catholic Bishops:
The [USCCB] document [Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice] has notable flaws. It suffers not in its methodology but in the particular way that contemporary carceral experience and the foundational concepts of the Catholic social tradition are then invoked to support an incomplete and sometimes inaccurate analysis.16
One handicap in discussing capital punishment is the modern tendency to discount, or not properly understand, the hard reality of Satan’s deep involvement in the criminal world. Within the dark bowels of our nation’s maximum security prisons the animating visage is his, a reality well-known to those living and working inside the steel and stone. I wrote about prison life in my first book, The Criminal’s Search for God, and some of what I wrote seems relevant here:
In a world of predators, each revelation was significant. If in defending yourself, it appeared you were close to giving up or appeared to be less than total in your commitment to protecting yourself, you might have to fight again. If the other convicts thought you would kill over a pack of cigarettes, they would be less likely to take your cigarettes. . . The cruelty and brutality of the prison is classically evil in the sense that the prisoners are being cruel and brutal consciously. That is the paradigm that works. It is not that there is that much that happens in prison that doesn’t happen on the outside; it’s just that in prison it is so much more concentrated and undiluted by goodness. Being an evil person is considered good in prison. Being able to hurt others without inner doubt or hesitation is considered high praise. . . Honour, as it is expressed in prison, is controlled brutality.17
The Church’s traditional support for capital punishment is based on the assumption of the reality of evil, which the relativist secular world has to struggle to accept. Some offences are so terrible that the only just and charitable response is to deprive the evildoer of life, and hope that before the sentence is carried out he will be spurred to seek forgiveness.
Cardinal Dulles gives us an historical overview:
In modern times Doctors of the Church such as Robert Bellarmine and Alphonsus Liguori held that certain criminals should be punished by death. Venerable authorities such as Francisco de Vitoria, Thomas More, and Francisco Suárez agreed. John Henry Newman, in a letter to a friend, maintained that the magistrate had the right to bear the sword, and that the Church should sanction its use, in the sense that Moses, Joshua, and Samuel used it against abominable crimes.
Throughout the first half of the twentieth century the consensus of Catholic theologians in favour of capital punishment in extreme cases remained solid, as may be seen from approved textbooks and encyclopedia articles of the day. The Vatican City State from 1929 until 1969 had a penal code that included the death penalty for anyone who might attempt to assassinate the pope. Pope Pius XII, in an important allocution to medical experts, declared that it was reserved to the public power to deprive the condemned of the benefit of life in expiation of their crimes.
Summarizing the verdict of Scripture and tradition, we can glean some settled points of doctrine. It is agreed that crime deserves punishment in this life and not only in the next. In addition, it is agreed that the State has authority to administer appropriate punishment to those judged guilty of crimes and that this punishment may, in serious cases, include the sentence of death.18
The proper response to unrepentant evil is God’s punishment, and capital punishment speeds that consequence, whereas human mercy delays God’s judgement. The historic Catholic support for capital punishment—as part of a long tradition of protecting the innocent—is vital to the social teaching of the Church, as that teaching needs to remain true to itself if it is to retain its potency in the conversion of sinners. To overturn a principle of the social teaching as ancient as the judicial use of capital punishment could bring all of its enduring principles into question. The Church’s social teaching still seeks to protect the innocent from the aggressor, and its teaching must be steadfast and true, for it is a light unto the world whose flame must burn constant and bright.
Notes
1. Catechism of the Catholic Church, §65.
2. Ibid., §84.
3. Ibid., §2267.
4. Ibid., §2260.
5. J. Budziszewski, “Categorical Pardon: On the argument for abolishing capital Punishment”, in E. C. Owens, J. D. Carlson & E. P. Elshtain, Eds., Religion and the Death Penalty (Cambridge, England: Eerdmans Publ., 2004), p. 116.
6. F. Newport, “Catholics similar to mainstream on abortion, stem cells” (30 March, 2009). http://www.gallup.com/poll/117154/Catholics-Similar-Mainstream-Abortion-Stem-Cells.aspx.
7. W. A. Campbell, “Exoneration Inflation: Justice Scalia’s Concurrence in Kansas vs. Marsh”, in The Journal for the Advancement of Criminal Justice (Summer, 2008), p. 52.
8. Catechism, §2267.
9. Avery Cardinal Dulles, “Catholic Teaching on the Death Penalty”, in Owens, Carlson & Elshtain, op. cit., p. 26.
10. Summa Theologica (II-II, Ques. 25, Art. 6, reply to objection 2).
11. Romano Amerio, Iota Unum: A Study of Changes in the Catholic Church in the XXth Century (Kansas City, Mo.: Sarto House, 1996), p. 432.
12. Richard John Neuhaus, “The Public Square”, in First Things (October, 1995).
13. S. A. Long, “Evangelium vitae, St. Thomas Aquinas, and the Death Penalty”, in The Thomist 63: 511-52 (1999), p. 511.
14. Ibid., p. 548.
15. For accounts of convicts conducting criminal activities while behind bars, vide inter alia J. Bykowicz, “Reigning from behind bars”, Baltimore Sun (9 March, 2008); J. Fenton, “Indictments reveal prison crime world”, Baltimore Sun (17 April, 2009); D. Kane, “Cell phones plague prisons: A smuggled phone can fetch $500”, The News and Observer (5 December, 2008); D. Thompson, “Prisons press fight against smuggled cell phones”, San Diego Union-Tribune (14 April, 2009); and M. Ward, “Prison officials ask for $66 million to help stop cell phone smuggling”, Austin American-Statesman (4 Dec., 2008).
16. A. Skotnicki, “The U. S. Catholic Bishops on Crime and Criminal Justice”, in Josephinum Journal of Theology (Winter-Spring, 2002), p. 147.
17. D. H. Lukenbill, The Criminal’s Search for God: Criminal Transformation, Catholic Social Teaching, Deep Knowledge Leadership, and Communal Reentry (Sacramento: Lampstand Foundation, 2006), pp. 18-21.
18. Avery Cardinal Dulles, “Catholicism and Capital Punishment”, in First Things (April, 2001).
